Michael BIONTINO, Permanent Representation of the Federal Republic of Germany to the Conference on Disarmament, Geneva

David BETZ, Reader, Department of War Studies, King’s College, London

Scientific and technological progress has ever since given rise to new warfare. While some of today’s new technologies can be useful for humanitarian action, they also have the potential to change the ways in which wars are fought in the real and virtual worlds. The traditional concept of conventional war is put into question. As a consequence, international humanitarian law (IHL) and the security regime will have to adapt so as to provide preventive regulations governing not only the use of these technologies, but also the cascading effects of any further advances that might result. This panel discussed in particular the challenges with regard to Lethal Autonomous Weapons Systems (LAWS) and cyber warfare.

Provisions of international law to address new weapons, means or methods of warfare

Despite new weapons technologies appearing during the First and Second World Wars, the battlefield remained relatively easily circumscribed and of limited complexity. Weapons were used in a classical sense. International law has kept up with these developments and remarkable achievements in the form of weapons treaties have been made since, most recently the 2013 Arms Trade Treaty. Furthermore, Article 36 of Additional Protocol I to the Geneva Conventions of 1977 obliges states to review the legality of weapons that they are developing, acquiring or adopting. In spite of the considerable normative framework, universal adherence to weapons treaties, their domestic implementation and compliance with Art. 36 remain challenging.

Systemic gaps in the current security architecture with regard to weapons systems which are currently not subject to specific regulations

LAWS are a multi-facetted emerging challenge to the existing security architecture. The fact that LAWS do not yet exist as such and the lack of a precise definition (in opposition to remote-controlled and automated systems) add complexity. A normative approach seems to gain traction among States, science and civil society. Concepts of meaningful human control over a weapons system or an appropriate level of human judgment might be needed to assess IHL rules when potentially deploying LAWS, especially in complex, cluttered environments. As a preventive measure, the legal review of LAWS as enshrined in Art. 36 of Additional Protocol I aims to give adequate assurance that these systems would predictably comply with IHL. As LAWS are autonomous and not entirely predictable, the current review processes are insufficient. Developing a guide for these processes could help to make them more transparent and consistent and to strengthen confidence in the review.

On the other hand, cyber warfare may not be as recent as widely believed and not a paradigm changer of warfare in spite of some hysteria and confusion dominating the current state of thinking. Cyber warfare – and the response thereto – may primarily threat social cohesion and freedoms. However, the increasing digitisation of values in today’s network societies makes them a target: civil infrastructure may be destroyed or intellectual property stolen. Public information may also become a possible target opening up avenues for espionage and a higher degree of unpredictability. Importantly, the threat from cyber engages strategic actors beyond the State. Non-state actors can exert strategic effects on States and other non-state actors and the private sector does normally not see the State as its primary line of defence when being attacked. This complexity raises challenges in the regulation of the cyber space.

Conclusion

Whereas means and methods of warfare change, the fundamental nature of war remains and so does the value-based approach of ensuring human security preventively. Complexity with new technologies stems from their dual use, but also from the changing environment in which they are used (urbanisation in the real and cyber space in the virtual world) and the range of strategic actors – state and non-state – involved with the state losing in parts its monopoly of technology and security provision. Core IHL principles can be applied for most parts to the discussions on LAWS and cyber warfare. The legal framework may, however, not match the speed of the technological advances. Pending a regulatory framework, policies, Rules of Engagement and military training adapted to the new weapons available and the context of their potential use may be developed. Confidence-building measures and improved transparency in the conduct of legal weapons reviews may also be practical ways forward, especially with regard to LAWS.

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